Supplemental Bill, between Richard Binks and Others, Plaintiffs; and Morris Lord Rokeby, Thomas Binks, and Ann his Wife, Frederick Turner, and Philip Macfarlan, Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1817 |
| Date | 01 January 1817 |
| Court | High Court of Chancery |
English Reports Citation: 56 E.R. 319
COURT OF THE VICE-CHANCELLOR OF ENGLAND
2MADD. 227. SINKS V. LORD ROKEBY 319 [227] Original Bill, between thomas binks, Plaintiff; and The Eight Honourable morris lord rokeby, frederick turner, and philip macfarlan, Defendants. Supplemental Hill, between richard binks and others, Plaintiff'*; and morris lord rokeby, thomas binks, and ann his Wife, frederick turner, and philip macfarlan, Defendants. June 13, July 16, 1817. Mortgage debt and premises were assigned by the mortgagee to trustees, with power to sue and give acquittances, and all the same powers as the mortgagee had. The mortgaged estate was sold under a decree, and the purchase-money paid into Court. Held, on an exception to the title, because the scheduled creditors were not parties to the bills, but only the trustees, that the trustees could make a good conveyance; and that the exception ought not to have been made to the title, but to the conveyance. A decree had been made in the first-mentioned cause for the sale of certain estates. Richard Carter was the purchaser, and the report of his purchase was confirmed. The purchaser paid his purchase-money into Court, and obtained a reference as to the title. He objected to the title, but the Master, to whom [228] the consideration of the objections was referred, reported a good title could be made. To this report Carter excepted. The exception was, "For that the said Master, by his said report, hath certified that he is of opinion that a good title can be made by the vendors to the hereditaments in the said report mentioned ; whereas the said Richard Carter is advised that the said Master, by his said report, ought to have certified that he is of opinion that a good title cannot be made by the vendors to the hereditaments in the said report mentioned, inasmuch as the trustees and creditors of the said Thomas Binks, &c., parties to the deed of the 10th March 1810, stated in the abstract of the title to the said hereditaments, are not made parties to the said suits, w by any means brought before this honourable Court; and it doth not appear that they consent to the payment of the purchase-money into the bank." The facts of the case were these. By indentures of lease and release, 19th and 20th December 1804, the release quadrupartite, between Thomas Appleton and Eleanor his wife, of the first part; the Right Honourable M. Lord Rokeby, of the second part; George Suowdon, of the third part; and G. Fielding and Samuel Girdlestone, of the fourth part; reciting the contract of Lord Rokeby with J. Appleton, for the purchase of the premises; and that Lord Rokeby had paid to J. Appleton £3000 in part of the purchase-money, and that it had been agreed the remaining £3000 should remain on mortgage of the premises; it was witnessed, that in consideration of the agreement, and of £3000 paid to J. Appleton by Lord Rokeby, J. Appleton, by the direction of [229] Lord Rokeby, bargained, &c., to George Snowdon, his heirs and assigns, the premises in question ; to hold to him, his heirs and assigns, to the use of J. Appleton, his heirs and assigns, for 1000 years, without impeachment of waste, subject to a proviso for redemption, on payment by Lord Rokeby to J. Appleton of £3150 arid interest, in manner therein mentioned; and from and after the expiration of the said term of 1000 years, and subject thereto, to the use of said Fielding "and Girdlestone, their heirs and assigns forever, and for the uses and purposes thereinafter mentioned; with a declaration that Fielding and Girdlestone should stand seised of the inheritance, subject to the term of 1000 years, upon trust for Lord Rokeby, his heirs and assigns, and to permit him to enjoy the same until default made in payment of the £3000 as therein mentioned; and if no default in payment, then upon trust to convey the premises to Lord Rokeby and his heirs, or as he or they should direct or appoint. By indentures, 30th April and 1st May 1800, between G. Fielding and Samuel Girdlestone, of the first part; James Appleton, of the second part; Lord Rokeby, of the third part; Thomas Biuks, of the fourth part; Frederick Turner and Philip Macfarlan, of the fifth part; reciting the indentures of the 19th and 20th December 1804; and further reciting, there was due from Lord Rokeby to said Thomas Binks the sum of £1597 and £2190; and that Lord Rokeby had applied to...
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